Monday, January 23, 2006

I just caught the end of a briefing on C-SPAN by Michael V. Hayden, the Principal Deputy Director for the Office of National Intelligence. The briefing was, of course, all about the Bush administration's illegal wiretapping of US citizens.

He was asked about the standard of evidence for the wiretapping that's been one of the main topics in the news lately. After stating, "If there's one amendment [his office] understands, it's the Fourth Amendment," he reiterated the claim that the administration can now bypass the FISA courts because the searches are "reasonable," and that's the only standard required by the Constitution. He responded to this reporters question, before leaving the room, that no warrants were required by the law.

I'd just like to briefly quote:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

LANDAY [reporter]: I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures.

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."

And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

Look, I'm just a scientist. I'm not even particularly a history buff. And even I instantly knew that the Fourth Amendment requires probable cause and a warrant. Are we really supposed to believe that the second-highest intelligence guy in our country really doesn't know what the Constitution says?